Judge Lee S. Arian, Case Number: 21STCV12646, Date: 2023-11-16 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV12646, Date: 2023-11-16 Tentative Ruling

Case Number: 21STCV12646 Hearing Date: March 20, 2024 Dept: 27

Complaint Filed: 4/2/21

Hon. Lee S. Arian¿

Department 27¿

Tentative Ruling¿

Hearing Date: 3/20/2024 at 1:30 p.m.¿

Case No./Name: 21STCV12646 ENGRACIA LOERA vs PALM GARDEN APARTMENTS

Motion: Motion to Compel Independent Medical Examination and Motion to Compel Site Inspection

Moving Party: Defendants

Responding Party: Plaintiff

Notice: Sufficient¿

Ruling: Motion to Compel Independent Medical Examination Is DENIED.

Motion to Compel Site Inspection Is DENIED.

Background

On April 2, 2021, Plaintiff filed the present complaint. The trial date was continued to January 18, 2024. Pursuant to CCP §2024.020(a), the discovery cut-off date was December 19, 2023, and the last date to hear a discovery motion was January 3, 2024 based on the January 18, 2024 trial date. On December 5, 2023, Defendant’s counsel reached out to Plaintiff's counsel to arrange an independent medical examination (IME) and to inspect Plaintiff's premises. Defendant claims that during this call, Plaintiff's counsel waived the 30-day notice requirement for both the IME and inspection but later refused to produce Plaintiff for the IME and inspection when noticed, prompting Defendant to file the present motions to compel.

Legal Standard

1. IME

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff. (Cal. Code Civ. Proc. § 2032.220(a).) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time. (Cal. Code Civ. Proc. § 2032.22 (d).)

2. Inspection

A defendant may make a demand for inspection, copying, testing, or sampling without leave of court at any time. CCP § 2031.020 (a) However, the noticing party must specify a reasonable time for the inspection, copying, testing, or sampling that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date. CCP § 2031.030 (c)(2)

3. Discovery Deadlines

Under 2024.020.(a) any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.

Analysis

On December 8, 2023, Defendant served a notice for an independent medical examination (IME) scheduled for December 13, 2023, and a notice for inspection scheduled for December 14, 2023. Both notices fall short of the 30-day requirement under CCP § 2031.030(c)(2) and Cal. Code Civ. Proc. § 2032.220(d). No application for a shortened notice period was filed. Thus, Defendant’s notices were both untimely. Defendant does not dispute this.

However, Defendant argues that during a phone call between the parties on December 5, 2023, Plaintiff's counsel waived the 30-day notice period for both the IME and inspection. Plaintiff disputes this, and the Parties present conflicting declarations in support of their positions. The Court reviewed the email exchanges between the parties since December 5, 2023, and observed discussions regarding possible arrangements for an IME and inspection, including talks about conducting a property inspection before the discovery deadline. However, there was no explicit mention of any type of waiver. Additionally, while the parties appeared to be discussing potential dates, nothing was confirmed. This is not a case where parties agreed on a certain date for the IME and inspection, only for Plaintiff to unilaterally back out later. Furthermore, when Defendant served the notices on December 8, 2023, Plaintiff filed an objection asserting that she did not waive her 30-day notice period. Based on the evidence presented, the Court does not find enough evidence to substantiate the conclusion that Plaintiff waived its notice.

Moreover, the last date to hear a discovery motion was January 3, 2024. Although the trial date and final status conference (FSC) date were continued from January 18, 2024, to April 2, 2024, the court made clear that discovery remains closed and therefore the last day to hear discovery motions was unchanged. When the hearing for a discovery motion is held after the discovery motion hearing cut-off date, the Court cannot grant a motion to compel without first deciding on a motion to reopen discovery. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) However, in the present case, no motion to reopen discovery was filed. In fact, in the Court’s January 25, 2024, minute order, the Court already considered Defendant’s argument to continue the discovery deadline but denied Defendant’s request due to Defendant’s lack of diligence as Defendant made no attempts to obtain a site inspection and an IME for over 2 year before issuing notices right before the discovery cut- off date.

Accordingly, Defendant’s Motions to compel are DENIED.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.